SDNY Judge Gardephe
Postpones Sentencing For Tests For Pot Which
He Calls Problematic

By Matthew
Russell Lee

SDNY COURTHOUSE,
August 19 – A man charged with
bank fraud including
exploiting an "account
adjustment" loophole while
depositing counterfeit checks
in ATM machines appeared for
sentencing on August 19 before
U.S. District
Court for the
Southern
District of
New York Judge
Paul G.
Gardephe. But
the sentencing
was postponed
for
three months
for Christian
Whidbee, for
him to show
Judge Gardephe
that he can
and will live
without
daily smoking
of pot.

Judge Gardephe
told Whidbee
and his lawyer
that he does
not view marijuana
as
acceptable. He
said that in
his nine years
as a
prosecutor and
now 11 as a
judge, he has
repeatedly
seen substance
abuse starting
with marijuana,
which he
called "highly
problematic."
He said
Whidbee had shown
in the past
three months
that he can keep a
job. Now he
needs to show
he can swear
of marijuana.
"If you do
that, sentencing
will be headed
in a positive
direction for
you." This is
a side of the
federal
District Court
judge's docket
not often
reported on -
Inner City
Press will
stay on it.

Back on August 8
in his otherwise empty
courtroom hours before a US
immigration bond hearing,
after 5 pm Judge
Gardephe read
outloud a long
decision
which, at the
end, granted
the habeus
corpus
petition of
detainee Jose
Celan Padilla
Raudales,
citing a
finding for
Mr. Padilla
under the
Convention
Against
Torture.

For a bond
hearing set
for 8:30 am on
August 9,
Judge Gardephe
after 6 pm
issued a short
written order:
"For the
reasons stated
in open court
today,
Petitioner’s
habeas corpus
petition is
granted to the
extent that it
is hereby
ORDERED that
at any bond
hearing for
Petitioner –
whether before
an immigration
judge or the
Board of
Immigration
Appeals – the
Government
will be
required to
demonstrate –
in order to
justify
Petitioner’s
continued
detention –
that he is a
danger to the
community or a
risk of
flight, and
that it will
be required to
prove danger
or flight risk
by clear and
convincing
evidence."

The custody
re-determination
hearing,
according to
the notice
filed by Bronx
Defenders' Suchita
Mathur, is at 8:30
am on August 9
at 201 Varick
Street.

Inner City
Press was the
only media in
the SDNY
courtroom of
Judge Gardephe
on August 8
and will
endeavor to
continue to
follow this
case, while
having been
denied access
to a case
across the
street only
the day
before, in a
process that
should be
subject to a
similar
challenge.

On August 7
without any citation to case
law or due process a criminal
presentation with Arabic
interpreter set for
August 7 at 2:45 pm in the
SDNY courtroom of Judge John
G. Koeltl was suddenly sealed
and Inner City Press ordered
out. The contrast seems clear.

Inner City
Press, alerted by its sources,
went into the courtroom. Soon
Assistant US Attorney Robert
B. Sobelman was asking Inner
City Press questions.

At 3:09 pm
Judge Koeltl's acting clerk
called the case as "United
States versus John Doe." The
defendant's lawyer, who told
the US Marshals not to bring
his client out of the holding
cell, asked Judge Koetlt for a
sidebar. Judge Koeltl, unlike
Circuit Judge Richard J.
Sullivan on July 26, granted
the sidebar. The white noise
was turned on.

After a
more than eight minute
animated sidebar discussion,
with the two lawyers, two
clerks, the acting deputy and
a court reporter, Judge
Koeltl took the bench and
asked Inner City Press to
leave. He said there was a
compelling need for secrecy,
without explaining what it
was, and said that the
government would provide some
update about this need for
secrecy -- in sixty days.

The
deputy came and indicted it
was time to leave. While doing
so, this reporter asked Judge
Koeltl, What's the case
number?

After a
pause, Judge Koeltl said
replied with a number.

But down
at the PACER terminal in SDNY
Press Room 480, where Inner
City Press earlier on August 7
was belatedly assigned a desk,
the response to this quiery
was, Cannot find [that] case."

The
defendant, it was said before
Inner City Press was ordered
out, was arrested the night
before. His defense lawyer
joked with the deputy about
Mad magazine's series, "Spy
versus Spy." In the gallery
were a half dozen camouflage
dressed agents whom Judge
Koeltl allowed to stay, along
with a representative of
pre-trial services. Is the
defendant going to be released
on bond? Is he - or she - a
cooperator? What is the basis
for this unannounced total
sealing of the courtroom for a
criminal presentment? Inner
City Press will have more on
this.

Before the
narcotics conspiracy trial US
v. Ernest Murphy
set to begin August 12 in the
U.S. District Court for the
Southern District of New York,
Circuit Judge Richard J.
Sullivan on August 6 indicated
his willingness pending
submission a map to partially
seal the courtroom during the
testimony of at least one
witness, an undercover
officer.

Inner City
Press which has been covering
the Murphy case some days ago
contested sealing in another
case before Judge
Sullivan, so far without
response. It is not clear for
this partial sealing what
opportunity the press or
public have to be heard.

Assistant
US Attorneys Karin Portlock,
Elinor Tarlow and Matthew
Hellman made the request for
partial sealing and argued for
it in a final pre trial
conference on August 6, with
Inner City Press in the
gallery. They resisted
specifying where the
undercover officer proposes to
continue operating, referring
to a map that is listed as
Government Exhibit 114. That
map is not online, and recent
requests for exhibits have
gone unanswered.

Even if
and when this exhibit it shown
to the jury, there is no video
monitor for the press and
public gallery in SDNY
Courtroom 15A Judge Sullivan
has been using, which has
for example no
swinging doors
by the jury
box
and no name on the front door.

The
government request states, and
Judge Sullivan on August 6
repeated, that an audio feed
would be provided into another
courtroom and a court
reporter's transcript
available in 24 hours - if, it
seems, one can afford it. Even
Murphy's lawyers said they
cannot afford the Live Feed
that Judge Sullivan and the
government counsel table will
have.

Judge
Sullivan in his affable way
asked defendant Murphy if he
had been informed of a plea
offer, to a five to forty year
sentence, previous offered.
Murphy said yes, adding "I'm
not guilty."

So the
trial will begin on August 12,
with the witness listed with a
pseudonym such that potential
jurors won't know if they know
the person - apparently a
woman - or not. We'll have
more on this.

The day
before the final pre trial
conference, on August 5 a
co-defendant of Murphy's was
sentenced to 54 months
imprisonment.

Robert
Rhodes was a part of this
alleged crack conspiracy for
11 weeks, responsible for 155
grams of crack. But as Judge
Sullivan noted, Rhodes
previously served two years
for shooting a man in the
shoulder - then got out of
jail and sold crack.

Rhodes'
lawyers Sarah M. Sacks and
Bennett M. Epstein asked for
36 months, citing personal
tragedy, time in the cold at
the MDC and that the State of
New York provided a dangerous
handball court then got Rhodes
addicted to opioids.

Assistant US Attorney Karin
Portland, who will prosecute
the Murphy trial starting
August 12, emphasized that
even addicted to opioids,
Rhodes sold drugs to others.
Judge Sullivan dug into this,
and to other issues, pointing
out that they cut both ways,
like the family support Rhodes
has. He had the support when
he committed the crimes, too.
At a fifteen minute break to
deliberate, Judge Sullivan
explained his reasoning for
the 54 months, saying public
explanations are important.
Inner City Press agrees. We'll
have more on this case, US
v. Tyshawn Burgess, Ernest
Murphy et al., 18-cr-373
(RJS), and other cases
including those below.

Back on July 22
in a court proceeding that
began as open, with the
defendants' family members and
even legal interns present,
Inner City Press was ordered
to leave, leaving no media or
member of the general public
present.

It took
place in the U.S.
District Court
for the
Southern
District of
New York at 500
Pearl
Street in
Courtroom 14C
before Judge
Paul A. Crotty:USA
v. Perlson,
18-cr-751.

When Inner
City Press went
in at 11:30 am, at
first Judge
Crotty was
asking why a
transcript in
the case said
it was from
November 31,
when November
has only 30
days.

"Good
catch," the
Assistant US
Attorney said,
adding that he
thought it
was from
October 31. He
added that Perlson
would now be
allocuting
to Count 2 and
that there
was a
cooperation
agreement.

Suddenly the
lawyers
pointed out
Inner City
Press in gallery, and
said while legal
interns were OK then
objected to
Inner City
Press'
presence. Judge
Crotty
asked Inner
City Press to
identify
itself.

"I am a reporter. If
you are going
to try to
close a public
courtroom there
must be
specific
findings, for
specific
portions. There is
case law."

There followed
a sidebar,
apparently
transcribed,
from which
Inner City
Press was
excluded. At
the end JudgeCrotty
while ordering
Inner City Press to
leave said that
the
government's
case is moving
along well and
that he hoped
to unseal the
transcript in
a month.

But is that
enough? Inner
City Press
left the
courtroom as
ordered,
adding as it
left that a
case on point
is
United States
v. Haller,
837 F.2d 84,
87 (before
closing a
proceeding to
which the
First
Amendment
right of
access
attaches, the
judge should
make specific,
on the record
findings
demonstrate
that closure
is essential
to preserve
higher values
and is
narrowly
tailored to
serve that
interest).

But
Inner City
Press was not
given an
opportunity to
make its
argument
before being
ordered out.
And once back
to the PACER
terminal at which
it has been
working for
months, searching
by "Perlson"
resulted in
nothing, and
18-cr-751
"case not
found."

On
9 July
2019 before SDNY Judge Loretta
A. Preska: listed
on
PACER and in
the SDNY
lobby for 10
am before her
was the case
of USA v.
Connors
Person, et
al,
17-cr-683,
complete with
letters of
support from the
head bank
regulators of
the state of
Alabama.

But when Inner
City Press
arrived at
10:10 am,
there was a shackled
defendant
with corn rows
at the defense
table. His
lawyer stood
and summoned
Assistant U.S.
Attorney Frank
Balsamello out
into the hall
by the elevators.
When they
returned, at the
same time as two of
the defendant's
family
members, Judge
Preska
asked about
those present
in the room, and
summoned the
lawyers up for
a sidebar - with
a court
reporter, which may
later
be
significant.

After the
sidebar
discussion,
Judge Preska
called the
case as US v.
Santino-Barrero
(phonetically
- it was not
written down
anywhere.) Then
Judge Preska
asked the
defendants' family
members to stand,
then the legal
interns, then
other interns
introduced by
one of the
Marshals.

"Is that you
in the back, Mister
Lee?" Judge
Preska
asked.
Inner City
Press
previously reported
daily on
the UN bribery
trial and
sentencing of
Patrick Ho
before Judge
Preska, once
answering in
open court her
question
about press
access to
exhibits in
that case. So the
answer was
Yes.

I'm going to have to
ask you to
leave, Judge
Preska said.

The
PACER terminal
in the SDNY
Press Room does
not list a
Santino Barrero
as a
defendant. The
Bureau of
Prison's
website is
only
searchable
with a first
name, which
was not given.